IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100009702 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that the reasons used to force him out of the Army were unjust.  He also states that he desires to continue his education endeavors utilizing the G.I. Bill that was promised to him on his enlistment contract.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army in Dallas, Texas on 29 November 1989 for a period of 4 years and training as a unit supply specialist.  He completed all of his training and was transferred to Panama on 23 April 1990.  On 5 September 1991, he departed Panama for assignment to Fort Hood, Texas. He was advanced to the pay grade of E-3 on 1 February 1992.

3.  On 12 November 1992, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.

4.  On 9 December 1992, NJP was imposed against him for two specifications of failure to go to his place of duty.

5.  On 2 February 1993, the applicant’s commander notified the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  He cited as the basis for his recommendation the applicant’s disciplinary record, his failure to respond to numerous counseling sessions, and his failure to pay his just debts.  He also advised the applicant that he was recommending that he receive a general discharge.  In support of the recommendation the commander attached several counseling statements and approximately 13 letters of indebtedness.

6.  After consulting with counsel the applicant waived his rights and elected to submit a statement in his behalf.  However, the statement is not present in the available records.

7.  The appropriate authority approved the recommendation on 12 February 1993 and directed that he be furnished a General Discharge Certificate.

8.  Accordingly, he was discharged under honorable conditions on 19 March 1993 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served 3 years, 3 months, and 21 days of total active service.

9.  On 18 October 1996, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that the commander did not consider at the time that the reasons used to discharge him were for outside interests and not related to military regulations and standards.  After reviewing all of the available evidence and arguments in his case, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge on 22 April 1997.  He subsequently re-applied to the ADRB and was granted a personal appearance before the ADRB travel panel in Dallas, Texas; however, he failed to appear before the scheduled board and his case was closed.

10.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A discharge under honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service and the number and nature of his offenses.  His service simply does not rise to the level of a fully honorable discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the applicant’s record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20100009702





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)